The Phelpsians' Picketing and Fighting Words:

I've argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and so on); but it has not been so limited.

Still, some say, what if the tort is so limited, perhaps by the appellate court in this case, and liability is defended on the grounds that the Phelpsians' speech was unprotected under the "fighting words" exception? I expect that would require reversing the verdict and retrying the case, since the jury wasn't required to find that the speech was fighting words -- but why not have such a retrial, or perhaps even affirm the verdict on the grounds that the speech was clearly fighting words and thus the failure to instruct the jury more narrowly was harmless error?

Under the "fighting words" exception, speech is unprotected if "tend[s] to incite an immediate breach of the peace" by provoking a fight, Chaplinsky v. New Hampshire (1942), so long as the speech consists of a "personally abusive epithet[] which, when addressed to the ordinary citizen, [is], as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California (1971), and is "directed to the person of the hearer," and is thus likely to be seen as "a direct personal insult." See Chaplinsky v. New Hampshire (1942); Cohen v. California (1971).

I have no doubt that the speech here would lead many listeners to want to punch the speaker; it would lead me to want to do that, too. But the "direct personal insult" requirement is important, or else the doctrine would lead to the punishment of a vast range of controversial speech: picket signs that condemn strikebreakers; abortion clinic protests that call abortion providers "murderers" or "babykillers"; military base protests that call soldiers "murderers" or "babykillers"; a wide range of public speech that some see as racist, sexist, antigay, religiously bigoted, anti-immigrant; and so on. And of course, as I mentioned for the emotional distress tort, the speech would then be punishable through civil lawsuits, through criminal prosecutions, and through other mechanisms, such as universities disciplining students for engaging in the supposed fighting words.

Fortunately, courts have in recent decades read the fighting words exception narrowly, to prevent the punishment of such speech. Likewise, condemning a dead soldier, much as it might offend the soldier's relatives, would not and should not be covered by the fighting words exception. And if it were found to be covered by such an exception, then I'd expect to see the exception grow to include many of the examples I mentioned.

Aaron Burr (mail):
Why isn't the fighting words exception coextensive with whatever used to justify calling someone out to a duel?
11.8.2007 3:09am
I think you're a little off on the facts. Phelps' signs and spoken words don't say bad things about the particular dead soldier whose funeral they intend to disturb. They are directed to groups - "soldiers" is the most common. Active duty honor guards and colleagues of the deceased are typically present, as are veterans who properly consider themselves part of that category. But for the protest laws, the Phelpsians would direct their words directly to all of those "soldiers". Although many of that group might be enlightened enough to consider the epithets less than a direct personal insult, I have no doubt the defendants would gleefully admit they intended direct personal insult.

Or would it be something other than a "direct personal insult" to stand outside your kids' daycare prominently sharing the general viewpoint that Soviet-immigrant law professor computer geeks engage in unlawful or immoral acts?

Also, the repeated use of counterexamples directed to pet causes of traditionalist Xtian righties rubs me the wrong way. Many of us aligned against the funeral picketers are non-Christian libertarians who got involved as "counter-speech" having some experience doing abortion clinic defense "protest".
11.8.2007 11:04am
markm (mail):
Aultimer: Is that "outside your kids' daycare", or "1000 feet outside your kids' daycare"? That seems like quite a difference to me. If the Phelpsian's offensive drivel was "fighting words" even when the father only saw them on the news, then the fighting words doctrine does indeed enable censorship of unpopular opinions - because I can see no place or manner of publicly uttering those opinions that cannot be taken as an insult.

As a veteran and the father of a man currently serving in the Navy, I'm insulted by their ideas, not by how they expressed them. But that does not give me the right to shut down expression of their ideas.
11.8.2007 4:19pm
one of many:
While I haven't looked at this particular instance of WBC funeral 'protest', I assume it follows the smae pattern as the 13 cases I have examined, where they were adressed specifically at the person being buried. It is difficult to see how insulting a dead person can be considered "fighting words" outside of a Romero movie.
11.8.2007 5:48pm
one of many:

That's flat wrong. This is a typical Phelpsian sign. They don't say anything about Soldier X. Try walking up to a Marine (active or not) and expressing any of the colorful sentiments (ok, other than "America is Doomed") in the linked picture. When you pick yourself up, ask if they felt the words were "adressed[sic] specifically at the person".
11.9.2007 12:25pm
markm -

I agree that the Phelpian signs and words wouldn't have been fighting words if they were spoken 1000 yards away, with no one to hear them aside from the cameras. The fact is there were "counter" protesters, invited guests of the family and others to whom they WERE fighting words. You could argue, and I'd have to agree, that 1A protection should extend to the Phelpsian speech with respect to the plaintiff, but I'll leave it to the more absolutist among the 1A defenders to handle.
11.9.2007 12:33pm
Vivictius (mail):
So it sounds like Chaplinsky v. New Hampshire (1942) makes sence but Cohen v. California (1971) was... oh, in California.

I'm just an engineer so forgive me if most laws seem designed to produce lawsuits to give lawyers more work. I still believe the quaint notion that the laws should exist to maintain public order and protect the peace.

The original limitations on "fighting words" was do the fact that if, for example, you call someone's mother a whore, they would soon be committing battery. Saying "all lawers are whores" to someone who's mother is a lawyer is no different (and unlike libel, being true really isn't a defense in this case).

As someone mentioned in an earlier post, there is a difference if these scum are at the local court house or at someone's funeral. Any claim the signs where not directed that the fallen and his family is a lie.
11.9.2007 12:55pm